Save Sarbanes Oxley?

Posted by John Carney, Aug 28, 2008, 8:54am

Could the DC Circuit which held that the Sarbanes-Oxley accounting board didn't infringe on constitutional separation of powers rules have been sending a signal to Congress to fix the law? That's what law professor Larry Ribstein thinks might have been going on.


[T]he DC Circuit figured that by upholding SOX with a strong dissent, it might be sending a message to Congress to amend to eliminate the problem. The court thereby avoids the chaos that would have ensued under the alternative holding of declaring the PCAOB unconstitutional. Because SOX lacks a severability clause, the effect of that would be to invalidate all of SOX and throw the whole thing back to Congress.

That's right. With out a severability clause, Sarbanes-Oxley might be completely struck down by a court finding fault with even a minor part of the law. As we explained earlier this week, the creation of the Public Company Accounting Oversight Board may be in trouble if the issue reaches the court, which could put the whole of SOX in jeopardy.

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Comments

1

Posted by guest, Aug 28, 2008 10:03AM

8:54, eh?

2

Posted by guest, Aug 28, 2008 10:40AM

How about saving Mayo?

3

Posted by guest, Aug 28, 2008 10:47AM

can you explain why there's a separation of powers again, for the benefit of this big swinging dicks on wall street who thing the only power that counts is absolute power?


and who's the moron that keeps posting about mayonaise? wtf?

4

Posted by guest, Aug 28, 2008 11:05AM

Artie Help is the mayo guy.

5

Posted by guest, Aug 28, 2008 11:11AM

Judge ate a nice mayo sandwich and laid down the law!

6

Posted by guest, Aug 28, 2008 11:17AM

As a Constitutional hedge against any of the branches of government becoming too powerful, the early federal government devised a doctrine of "separation of powers."

Thus, the President and his federal agencies (the "executive branch") could propose legislation and act within specifically delineated spheres of responsibility, e.g., the President could direct a war as Commander-in-Chief. The executive branch oversees the administration of Congressionally-authorized expenditures and other matters having to do with administering and enforcing the law.

Congress holds all law-making power (the "legislative branch"), and developes and passes a budget. Funding for projects can only be authorized by the Congress. Legislation passed by Congress could be signed by the President to become law, or vetoed, which would nullify the legislation. Classically, only Congress could declare war, although the President could authorize a police action. Congress has subpoena powers and can hold hearings into areas that may be subject to future legislation.

The judiciary interprets enacted laws and regulations (the "judicial branch"). Neither the Congress nor the President are authorized to resolve disputes arising under the law, and only the judiciary can make a formal determination of the law.

All three branches are required to be separate and independent of one another.

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